James M Kenny

Service

1.          The Registrant was not in attendance so the first matter the Panel had to consider was whether there had been good service of the notice of hearing. The Panel had sight of an 8 page service bundle.  

2.          The Registrant was sent an email dated 9 November 2023 which advised him that following the adjournment of the hearing on 9 October 2023 it would now take place on 11 December 2023 by way of remote hearing. The Panel is satisfied that the email was sent to the address held by the HCPC for the Registrant having seen a certificate to this effect. The Panel also had sight of a certificate of proof of service. A further email was sent to the Registrant on 5 December 2023 to confirm the arrangements for the hearing to which the Registrant responded “No I will not be attending !.” [sic].

3.          The Panel accepted the advice of the Legal Assessor and having considered the documentation was satisfied that there had been good service in compliance with Rule 6 of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003.

Proceeding in Absence

4.          The Panel then had to determine whether to proceed in the Registrant’s absence. The Panel listened to the submissions made by Mr Micklewright, on behalf of the HCPC, who invited the Panel to proceed in the absence of the Registrant. He submitted that the Registrant had in effect waived his right to attend and be represented and that it would be in the public interest to continue with the hearing today.

5.          The Legal Assessor referred the Panel to the HCPC Practice Note “Proceeding in the Absence of the Registrant.” She reminded the Panel that the test to be applied had been articulated in R v Jones [2002] UKHL 5 and it may wish to consider whether the Registrant’s absence was voluntary and whether any interest would be served in adjourning the proceedings.

6.          The Panel retired to consider its decision. It took into account the fact that this hearing had already been adjourned on one occasion, that the allegations were now of some age, the Registrant had agreed to a consensual determination and he had made clear that he did not intend to take part in the proceedings. In those circumstances the Panel reached the view that no purpose would be served by an adjournment, it would not secure the attendance of the Registrant and would not be in the public interest to further delay a resolution of the proceedings. Therefore, the Panel decided to proceed in the absence of the Registrant.

Background

7.          The Registrant is an operating department practitioner. He was first registered with the HCPC on 24 February 2006 and, but for two short periods off the register due to his registration having lapsed, he has been registered ever since.

8.          The Registrant was employed by the Salisbury NHS Foundation Trust (“the Trust”) as an operating department practitioner from September 2017 until 5 September 2019.

9.          During his employment with the Trust the Registrant was the subject of two investigations under the Trust’s capability process. It is also relevant background that over the period of his employment, the Registrant had significant periods away from work due to illness. This includes that in November 2017 the Registrant went off work due to illness, he returned to work on 28 January 2018.

10.       In March 2018 the Registrant was the subject of an investigation by the Trust into his competence. The Registrant was unable to work pending the outcome of the investigation but he returned to work on 3 September 2018. At this stage he was required to be supervised and was required to achieve various competencies for his role as an operating department practitioner.

11.       It is the HCPC’s case that the incidents which give rise to the matters set out at allegations 1 – 6 occurred during the period between the Registrant returning to work in September 2018 and the end of his employment on 5 September 2019.

12.       Alexandra Hurley, a nurse employed as the Theatre Operational Matron at the Trust, was the Registrant’s Clinical Supervisor. It is Ms Hurley’s evidence upon which the HCPC predominantly relies in respect of allegations 1 – 6. Ms Hurley understood that the Registrant’s background was in anaesthetics and that he had worked in this area in New Zealand and Australia. Once the Registrant had been working at the Trust for a few weeks there were ‘grumblings’ from others about his work. One day in around November 2017 she recalls that the Registrant attended work appearing dishevelled and said he was ill and anxious and that he was then off sick for a significant period.

13.       Upon the Registrant’s return to work on 3 September 2018 he commenced an induction programme to enable him to achieve competencies for his role. He was off work from 23 October 2018 until 23 January 2019.

14.       On 29 January 2019 he returned to work on a phased return, on a supernumerary basis. In April 2019 the Trust’s formal capability process was instituted because the Registrant had not been able to work on an unsupervised basis at the Trust.

15.       Whilst issues surrounding the Registrant’s clinical competence were being managed under the Trust’s capability process, a concern was raised with the Trust that the Registrant was not registered in New Zealand. Therefore, the Trust made contact with the Medical Sciences Council New Zealand. It confirmed that the Registrant had been suspended there since 2015 and had not informed the Trust. The HCPC Registration Manager checked the HCPC’s records and confirmed that there is no record of any declaration of an adverse finding by another regulatory body.

16.       A referral was made to the HCPC on 4 November 2019 on behalf of the Trust.

17.       On 28 January 2021 the Registrant pleaded guilty to four offences at Swindon Magistrates Court.

18.       In a meeting on 2 February 2023 a Panel of the Investigating Committee decided to pursue a number of allegations against the Registrant which included the following:

i.                 A number of clinical concerns in relation to the Registrant’s conduct whilst practising as an operating department practitioner (allegations 1 – 6);

1. A failure to inform the HCPC that he had been suspended by another regulator and associated dishonesty (allegations 7 and 8);

• The making of an inaccurate declaration on an application to renew registration and associated dishonesty (allegations 9 – 11); and,

1. A conviction dated 28 January 2021 in respect of offences of sexual assault, assaulting a police officer and assaulting a detention officer and a failure to notify the HCPC of these matters and associated dishonesty (allegations 12 – 16).

19.       A final hearing was listed which could not take place. Then, following correspondence with the Registrant, a ‘consensual disposal request pro forma’ was completed by the Registrant on 25 August 2023. A hearing to determine whether there could be a decision by consent was listed on 9 October 2023. However, the Panel on that occasion determined that there had not been good service of the required documentation and therefore the hearing had to be adjourned.

20.       The Registrant was provided with and completed a further ‘consensual disposal request pro forma’ on 11 November 2023 and a third on 29 November 2023. The Registrant indicated that Allegation 1 was not true however, he was prepared to agree to it ‘to make life easier’.

21.       The hearing was relisted for today.

Disposal by Consent

22.       The Panel had before it a bundle of 526 pages which included a skeleton argument prepared on behalf of the HCPC, the service bundle and the previous panel’s decision to adjourn.

23.       Mr Micklewright, on behalf of the HCPC, invited the Panel to dispose of the allegations against the Registrant by consent, by imposing a striking off order. He submitted that although there is an allegation of impairment on health grounds it is not open to the Panel to make a finding of impairment on that ground as it simply does not have jurisdiction. In light of the proposed sanction the Panel has been invited not to take any action in relation to this allegation.

24.       Mr Micklewright referred the Panel to the correspondence between the Registrant and the HCPC. He invited the Panel to reach the following conclusions:

a.     The substance of the allegation is admitted;

1. Impairment is admitted on all four grounds;
2. A striking off order is the agreed disposal; and,
3. A striking off order provides the appropriate degree of public protection.

25.       Mr Micklewright explained to the Panel that the Registrant does not accept the truth of allegation 1. However, he submitted that this is not relevant in circumstances where the Registrant has accepted the substance of the allegations, accepts that his fitness to practise is impaired and has made an unequivocal statement that he agrees to the matter being dealt with by way of a striking off order.

26.       He submitted that the Panel ought to consider the issue of sanction, and in particular, that it could satisfy itself that the outcome proposed is in line with the likely outcome following a substantive hearing. This is because the striking off order provides a proper degree of public protection and there are no other public interest considerations which would require the hearing to proceed to a substantive hearing.

27.       The Legal Assessor referred the Panel to the HCPTS’s Practice Note on ‘Disposal of Cases by Consent’.

28.       The Legal Assessor reminded the Panel that the Practice Note makes clear that the HCPC’s overarching statutory objective is the protection of the public. With that in mind, the Panel should not agree to a case being resolved by consent unless it is satisfied that firstly, the appropriate level of public protection is being secured; and secondly, doing so would not be detrimental to the wider public interest.

29.       She reminded the Panel that disposal by consent does not affect its powers or the range of sanctions available. It is merely a process by which the HCPC and the registrant concerned may propose what they regard as an appropriate outcome to the case.

30.       The Panel still has the option of rejecting a proposal for disposal by consent. Before considering the proposal a panel should satisfy itself that the HCPC:

a.     has provided a clear, appropriately detailed and objectively justified explanation within its supporting skeleton argument of why the matter is suitable for disposal by consent on the terms set out in the draft Consent Order; and,

b.     has made clear to the registrant concerned that co-operation and participation in the consent process will not automatically lead to a Consent Order being approved.

31.       She explained to the Panel that it had to be satisfied that one or more of the statutory grounds had been met by exercising its professional judgment. The Panel was reminded of the guidance provided in Roylance and General Medical Council (No.2) [2000] 1 A.C. 311 and Calheam v General Medical Council [2007] EWHC 2606 at paragraph 39 when considering misconduct and lack of competence. It was also referred to Rule 10 (1) (d) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 when addressing convictions.

32.       The Legal Assessor reminded the Panel that determining fitness to practise is a three-stage process but that they are ‘steps’ rather than formal stages.  She reminded the Panel that it had to determine impairment and to do this the Panel looks forward not back in order to form a view as to whether the registrant is fit to practice without restriction today.

33.       She referred the Panel to the HCPTS’s Sanction Policy and reminded the Panel that it had to satisfy itself that the outcome proposed was proportionate and would be in line with the likely outcome following a substantive hearing.

34.       The Panel was mindful that the task before it today was to determine whether to conclude the case on an expedited basis upon the terms of the draft Consent Order put before it or reject that proposal and set the case down for a full hearing.

35.       The Panel considered the evidence before it. The Panel noted that the Registrant did not accept the facts in allegation 1. The Panel was satisfied that this allegation related to a one off event which was minor in the context of the other allegations. Therefore it was content to exclude this allegation from its further considerations.

36.       In regard to allegations 2-6 the Panel had the opportunity to read the statement prepared by Alexandra Hurley and clearly documented the Registrant’s clinical failings.

37.       The Panel was provided with evidence from Caleb Bridgeman, the Registrar of the Medical Sciences Council of New Zealand, which set out the chronology in relation to the regulatory proceedings concluded against the Registrant in New Zealand. It was clear to the Panel that the Registrant was suspended as at 11 August 2016 and that there was no record of any declaration by the Registrant of an adverse finding by another regulatory body. The Panel was satisfied therefore, that there was a basis for the Registrant’s admissions to allegations 7 and 8 and that it amounted to dishonesty.

38.       The Panel had sight of evidence which supported the Registrant’s admission to allegations 9-11 that he had dishonestly made declarations which were untrue.

39.       The Panel had been provided with the memorandum of conviction from Salisbury Magistrates’ Court and was satisfied therefore that the Registrant had been convicted of offences that had taken place on the night of the 10/11 January 2021 in Salisbury town centre. In short, the Registrant, who was heavily intoxicated followed two males in the city centre and grabbed their bottoms, hugged them and stroked their thighs. When the Registrant was arrested he kicked the arresting officer’s shin. He also assaulted a detention officer whilst being escorted to his cell. The HCPC had no record of the Registrant’s conviction as he had not declared this to the HCPC. This evidence was consistent with the Registrant’s admissions to allegations 12-16.

40.       The Panel considered the nature of allegations 2-6. It took the view that the clinical failings were basic and that the Registrant lacked knowledge of fundamental concepts that formed the bedrock of safe practice. The conduct described demonstrated to the Panel a lack of understanding and inability to apply the most basic care which fell seriously short of what would amount to safe practice. Having taken into account the time frame of the incidents, the support that was in place for the Registrant and the ongoing competency testing, the Panel was satisfied that these clinical failings were so serious that they collectively amounted to both to a lack of competence and misconduct.

41.       The Panel considered allegations 7-11 which showed the Registrant’s inability to be honest with his regulator on a number of occasions. In the Panel’s view the dishonest aspect of this made it particularly serious. The Panel had read the Registrant’s explanations for his failure to make appropriate declarations and could not see that he had provided a direct answer but attempted to obfuscate when providing his response. In the Panel’s view applications to join or remain on a register are an important tool to safeguard the integrity of the Register by ensuring that only those people who meet the standards can remain. The Registrant’s failure to engage with his Regulator as expected and make false declarations of truth was in the Panel’s view misconduct.

42.       The memorandum of conviction evidenced charges that the Panel found were particularly serious in that they demonstrated a sexual component.  The Panel took the view that failing to bring these to the attention of the regulator was another serious lapse of honesty, judgment and professional integrity.  

43.       In these circumstances the Panel considered that there was sufficient evidence to enable it to conclude that the facts amounted to misconduct, lack of competence and the statutory ground of conviction.

44.       The Panel acknowledge that by agreeing to a disposal by consent the Registrant to some degree accepted the concerns. However, the Panel had not been provided with any evidence that the Registrant has shown insight or attempted to remediate his conduct. The Registrant has shown himself to lack the clinical knowledge to be able to practise safely, has on repeated occasions shown himself to be dishonest in his interactions with his regulator and had been convicted of serious offences. The Panel considered that an informed member of the public would be shocked if the Registrant was not found to be impaired given his level of failings. In light of the extremely serious regulatory concerns and obvious ongoing risk to patients, the Panel found that Registrant’s fitness to practise was currently impaired on both the personal and public components.  

45.       The Panel considered the Sanctions Policy and noted that a striking off order may be appropriate in circumstances where there has been dishonesty and criminal convictions for serious offences. The Panel has already determined that both of these are aspects of the Registrant’s impairment. The Panel also took the view that in the Registrant’s case his dishonesty both undermined public confidence in the profession and impacted the public’s safety. In the Registrant’s case he has been dishonest on a number of occasions and he used his dishonesty to obtain entry to and remain on the Register.

46.       The Panel also took into account the following guidance that “a striking off order is likely to be appropriate where the nature and gravity of the concerns are such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In particular where the registrant: lacks insight, continued to repeat the misconduct and is unwilling to resolve matters.” The Panel’s judgment is that the range, seriousness and lack of any evidence of willingness to resolve matters places the Registrant’s conduct within this bracket.

47.       The Panel noted that of course the Registrant has agreed to this sanction. To satisfy itself that a Striking Off Order was proportionate the Panel considered a Suspension Order. However, as the Panel has seen no evidence that the registrant may be able to remedy his failings, has shown any insight or will not repeat the issues, it took the view that this sanction is obviously not appropriate.

48.       Accordingly, the Panel agreed with the proposed Consent Order.

Order: The Registrar is directed to strike the name of Mr James Kenny from the register.

The Panel concluded that an Interim Suspension Order for 18 months was the proportionate order to make. 

History of Hearings for James M Kenny